It has been long established that the police owe a duty for the preservation of the Queen’s

peace. The phrase has an old-fashioned sound but the principle remains true. Halsbury’s

laws of England, fifth ed (2013) , Vol 84, para 40, states that the primary function of the

constable remains, as in the 17th century, the preservation of the Queen’s peace. Discuss

this in the light of the decisions by the court

“Today’s decision by the UK Supreme Court in Michael v Chief Constable of South

Wales Police 1preserves police immunity from negligence liability. The Court confirmed that

the police do not owe a common law duty of care to the public when investigating and

preventing crimes. For the first time in seven years, the Court reconsidered police immunity

and, by a 5-2 majority, opted to retain the status quo. While the police can still be sued for

“operational” negligence, they remain immune from claims arising from failings occurring in

the course of the investigation and prevention of crime.”2

“It has been long established that the police owe a duty for the preservation

of the Queen’s peace. The phrase has an old-fashioned sound but the principle remains true.

Halsbury’s laws of England, fifth ed (2013) , Vol 84, para 40, states that the primary function

of the constable remains, as in the 17th century, the preservation of the Queen’s peace.”

The above quotation is taken from Lord Toulson’s judgement in the abovementioned

Michael case. The issue here is that Ms Michael (the deceased) would not have died had the

police forces both in Gwent and South Wales not delayed their response actions. Yet the

1
Michael & Ors v The Chief Constable of South Wales Police & Anor [2012] EWCA Civ 981
2
Available at http://news.liv.ac.uk/2015/01/28/viewpoint-supreme-court-rejects-michael-familys-bid-sue-
police/ accessed 8th April 2015.

1
court’s ruling now imposes a two-fold question – Are the police completely immune to the

courts? If so, will the ever be held responsible for their actions?

The fundamental function of a police officer’s role is to protect the public. However,

the translation of this function into the tort of negligence is a contentious matter3 In order

to formulate a tort of negligence, it needs to be established that the defendant owes the

claimant a duty of care. Caparo v Dickman4 is the leading case on the test for a duty of care,

where the House of Lords established a ‘three-fold-test’ to determine whether a duty of

care arose in negligence. First, harm must be reasonably foreseeable as a result of the

defendant’s conduct. Secondly, the parties must be in a relationship of proximity, and

thirdly it must be fair, just and reasonable to impose liability. The issue that arises is then to

what extent the police, whose functions involve the rescue and protection of people, owe a

duty of care in negligence. The law remains unclear on the scope of a police officer’s duty to

investigate crime.

Murder – the police’s best friend (Hill v Chief Constable of West Yorkshire 5)

A murderer referred to as the ‘Yorkshire ripper’ committed 13 murders and 8

attempted murders of unaccompanied women. The claimant was the mother of his last

victim, who brought an action under s 48(1) of the Police Act 1964, claiming damages for

negligence against the Chief Constable in whose area most of the attacks occurred. The

claimant argued that it was the duty of the police to ‘exercise all reasonable care to catch

the criminal’ and the failure to do so, when they could and should have done it in the

circumstances, amounted to a serious breach of their duty. The Chief Constable applied to

3
Mandy Shircore, ‘Police Liability for Negligent Investigations: When Will a Duty of Care Arise?’ (2006) 11
4
Caparo Industries plc v Dickman [1990] 2 AC 605
5
Hill v Chief Constable of West Yorkshire [1989] AC 53

2
strike out the claim as disclosing no cause of action. The claim was struck out by the High

Court on the basis that the police owned no duty of care to a member of the public in

respect of an attack on him made by another member of the public. This decision was

upheld on appeal by the Court of Appeal and the House of Lords6.

Lord Keith, providing the leading judgement in the House of Lords, underlined the

first ground for exempting police liability and denying a duty of care was the absence of a

‘special relationship’ legally referred to as ‘proximity’ between the police and the criminal.

His lordship underlined that sufficient proximity arose in situations where a criminal was in

police custody, or had escaped from it. It was held that the general duty owed by the police

to suppress crime did not give rise to a duty owed to individual members of the public in

respect of damage caused to them by a criminal whom the police had failed to apprehend

where it had been possible to do so. In this case it was argued that there was insufficient

proximity as the victim was one of the ‘vast number of female general public who might be

at risk from his activities but was at no special distinctive risk in relation to them. Lord Keith

underlined that the test for proximity requires “some further ingredient … and the nature of

the ingredient will be found to vary in a number of different categories of decided cases. The

second ground for granting police immunity was based on the principles of public policy. It

was held that police liability would lead to detrimental consequences, in particular policing

from a ‘defensive frame of mind’, and a ‘diversion of resources’ theory Lord Keith concluded

that ‘the general sense of public duty which motivates police forces is unlikely to be

appreciably reinforced by the imposition of such liability so far as concerns their best

6
Zoha Jamil, ‘Police Liability for Negligent Investigations: Unravelling the Blanket of Immunity’ (2013) 306 -
307

3
endeavours to the performance of it.’ The police would therefore not be liable for their

negligence during the ‘investigation and suppression7

Critisism(s) of ‘public policy approach’

It has been suggested by academics such as Jane Stapleton that the test formulated

in Hill, which is based on the foundations of public policy justifications, provides the police

with ‘blanket immunity’ from civil suits even ‘when carelessness has caused an actionable

form of damage to the plaintiff.’8 Kevin Williams refutes this, saying that it is essential to

note that the police have no general immunity, and may be liable for their own negligent

acts that directly harm another9

The courts have attempted to distinguish between two different types of negligence

cases. The first type of case is ‘operational negligence’ where police officers have caused

injury as a direct result of their actions or omissions, in which they would be liable for

negligence in tort10. Thus in Rigby11 the police were liable in negligence for failing to take

adequate precautions against the high risk of fire when firing a canister of CS gas into the

shop. Similarly in Swinney12 a duty of care was owed to an informant who had received

threats from a violent suspect after her contact details had been stolen from an unattended

police car. The police were held liable in this case as they had assumed responsibility for the

informant’s safety. The Courts have distinguished these ‘direct action’ cases from the

rationale adopted in Hill, which grants police immunity only in cases where the claimant has

7
Ibid
8
Jane Stapleton, ‘Duty of Care: Peripheral Parties and Alternative Opportunities for Deterrence’ (1995) 111
LQR 301, 303
9
Kevin Williams, ‘Emergency Services to the Rescue, or Not, Again’ (2008) Journal of Personal Injury Law 265
10
WVH Rogers, Winfield and Jolowicz on Tort (8th edn, Sweet and Maxwell 2010) 210
11
Rigby v Chief Constable of Northamptonshire [1985] 1 WLR 1242
12
Swinney v Chief Constable of Northumbria [1997] QB 464

4
suffered a loss because the police have made an error in the course of fulfilling their general

public function of ‘investigating and preventing crime’.13 Palmer highlights that the principle

established in Hill is ‘riven with problems of interpretation’14 and continues to suffer severe

academic scrutiny, for ‘its boundaries have never been properly defined.’15 An assessment

of the ‘boundaries´ therefore requires critical examination of subsequent case law following

the Hill principle.

Osman v Ferguson16

The facts of concerned a school teacher, Paul Paget-Lewis, who had developed an

unhealthy fixation with his 14 year old pupil, Ahmet Osman. Over a series of months Ahmet

and his family were subjected to a campaign of harassment that involved several acts of

criminal damage. These incidences were reported to the police, who failed to take any

action to arrest him. Consequently Paget-Lewis shot and killed Ahmet’s father and caused

serious injury to Ahmet. Upon being arrested, Paget-Lewis stated that he had planned the

attacks and questioned the police ‘why didn’t you stop me before I did it, I gave you all the

warning signs?’17 Mrs Osman then sought legal action against the Commissioner of the

Metropolitan Police for negligence.18

The initial hearing in High Court dismissed claims against the police negligence under

the immunity granted in Hill. In 1992 the Court of Appeal allowed an appeal from the High

13
Zoha Jamil, ‘Police Liability for Negligent Investigations: Unravelling the Blanket of Immunity’ (2013) 308
14
Phil Palmer, ‘Can the UK Police Ever Be Liable for Negligent Investigation or a Failure to Protect?’ (2011) 1
International Journal of Public Law and Policy 100
15
Ibid
16
Osman v Ferguson [1993] 4 All ER 344
17
Claire McIvor, ‘Police Immunity and the Legacy of Hill v. Chief Constable of West Yorkshire’ (2005) 21
Professional Negligence 201
18
Zoha Jamil, ‘Police Liability for Negligent Investigations: Unravelling the Blanket of Immunity’ (2013) 309-
310

5
Court’s decision. McCowan LJ recognized that the plaintiffs here had ‘an arguable case’

based on the close proximity between the police, the family, and the teacher. However, the

Court of Appeal held the case could not be distinguished from Hill on public policy grounds.

McCowan LJ stated that the ‘House of Lords’ decision on public policy immunity in Hill’s case

dooms this action for failure … I consider this a plain and obvious case falling squarely within

the House of Lords decision.’ Fearing the possibility of floodgate concerns and the potential

re-opening of cases without reasonable cause, the Court struck out Osman’s statement of

claim and refused an appeal. This case was then taken to the European Court of Human

Rights.19 20

The subsequent decisions in Brooks21 and Smith22 highlight again that the application

of the Hill principle is problematic. Lord Keith introduced immunity for the police only when

injury was caused during their ‘investigation and suppression of crime,’ to what extent does

the duty of ‘investigating and supressing’ stretch? Claire McIvor argues that the decision in

Brooks demonstrates that the courts have stretched the blanket of immunity to

accommodate ‘direct action’ caused by the police, and its scope is now far ‘too broad and

imprecise.’23 This line of reasoning is reinforced by the decision in Calveley v Chief Constable

of Merseyside Police24 where the police were alleged to have inflicted direct harm on the

victim. However, the House of Lords automatically granted the police immunity from

liability on public policy grounds ‘without advertence to this important difference’ between

19
Hereafter known as ‘ECHR’
20
Ibid
21
Brooks v Commissioner of Police of the Metropolis [2005] UKHL 24, [2005] 2 All ER 489
22
Smith v Chief Constable of Sussex Police [2008] UKHL 50, [2009] 1 AC 225
23
Claire McIvor, ‘Getting Defensive About Police Negligence: the Hill Principle, the Human Rights Act 1998 and
the House of Lords’ (2010) 69 CLJ 133, 142
24
Calveley v Chief Constable of the Merseyside Police [1989] AC 1228

6
‘direct harm’ and ‘investigating and suppressing crime.’25 The decision in cases such as

Calveley and Brooks, have demonstrated that because the scope of Hill is undefined, police

immunity is no longer confined to the ‘suppression and investigation of crime,’ it has

problematically been ‘stretched too far, and its foundations are wearing increasingly thin.’26

The second problem arising under the Hill principle is addressed by Richard

Mullender who argues that the current law under Hill is particularly problematic as public

policy justifications enable courts to shield police from claims that would ‘deflect them from

the pursuits of outcomes that serve the interests of sometimes very large numbers of

people.’27 Cases such as Smith demonstrate that the public policy card is played far too

often to shield liability for police actions, and the courts have afforded a privileged status to

the police, who have therefore attained the freedom to discharge their duties with the

excuse of ‘preventing and detection’ of crime. With the undefined scope of the Hill principle

coupled with public policy justifications, courts are able to cast a blanket of immunity over

all police actions.28

Claire McIvor concludes that until cases such as Brooks and Smith are challenged, the

Hill principle cannot be ‘properly understood and implemented.’ Hanna Wilberg, in

agreement, has held that the ‘Hill principle’ may lead to injustice and needs to be

reassessed. However the courts are yet to offer ‘any principled analysis on whether there

are limits to the police functions.’29 The continuing and escalating debate of the Hill

25
Dermot PJ Walsh, ‘Police Liability for a Negligent Failure to Prevent Crime: Enhancing Accountability by
Clearing the Public Policy Fog’ (2011) King's Law Journal 27
26
Claire McIvor, ‘Getting Defensive About Police Negligence: the Hill Principle, the Human Rights Act 1998 and
the House of Lords’ (2010) 69 CLJ 133, 142
27
Richard Mullender, ‘Negligence, Public Bodies, and Ruthlessness’ (2009) 72 MLR 961
28
Zoha Jamil, ‘Police Liability for Negligent Investigations: Unravelling the Blanket of Immunity’ (2013) 311-
312
29
Hanna Wilberg, ‘Defensive Practice or Conflict of Duties? Policy Concerns in Public Authority Negligence
Claims’ (2010) 126 LQR 420

7
principle suggests that the time has come for it to be reformed. Some evidence of this can

be found in the follow-up to Osman’s case at the ECHR as discussed below

Osman v UK30

Following the previous decision in the Court of Appeal, the claimants claimed that

the striking out procedure had denied their case a fair hearing, and went to the European

Court of Human Rights31 to argue violations of Article 2 (the right to life, in relation to the

father), Article 6 (the right to a fair trial), Article 8 (the right to respect private and family

life) and Article 13 (the right to an effective remedy) under the ECHR.

The courts concluded that at no stage the police ‘knew or ought to have known’ that

the lives of the Osmans were at real and immediate risk from Paget-Lewis, therefore there

was no breach of Article 2 or 8. The psychiatrist who interviewed Paget-Lewis had stated

there were no signs of mental illness, and it would be unreasonable for the police to

determine from only the complaints by the school, that Paget was a mentally disturbed and

highly dangerous individual. Neither were his acts of vandalism or cryptic threats sufficient

to amount to as a threat against the lives of the Osman family. The Court held the police had

acted in a reasonable manner given the information that was provided to them, and were

not in breach of their duty to protect lives.32

In consideration on whether there had been a breach of Article 6 the ECtHR gave

regard to the legitimacy of the public policy justification, and acknowledged that the

exclusionary rule of liability developed in Hill was not ‘of an absolute nature. However, it

30
Osman v United Kingdom [1998] EHRR 101
31
Hereafter known as ‘ECtHR’
32
Zoha Jamil, ‘Police Liability for Negligent Investigations: Unravelling the Blanket of Immunity’ (2013) 324-
325

8
was held that the public policy hurdle ‘provided a watertight defence to the police and that

it was impossible to prise open an immunity which the police enjoy from civil suit in respect

of their acts and omissions in the investigation and suppression of crime.’ It was found that

the Court of Appeal, in applying the public policy justifications, had made no further enquiry

into the existence of competing public interest considerations, and this serves ‘to confer a

blanket immunity on the police for their acts and omissions’ which therefore ‘amounts to an

unjustifiable restriction on the applicant’s right.’ The ECtHR held the current law under the

Hill principle confers absolute immunity on police actions, and is therefore inconsistent with

the human rights legislation, amounting to a breach of Article 6, and Article 13. 33

Lord Hoffman held that the decision in Osman filled him with apprehension and

should be challenged on several grounds34. His Lordship maintained that the ECtHR in their

decision had utilized Article 6 in deciding what a person’s civil rights and obligations should

be, rather than merely providing the right to access a court. He contended there was a

potential conflict between the UK legal system and the Strasbourg jurisprudence, as the

ECtHR is ‘challenging the autonomy of the courts, and indeed the Parliament of the United

Kingdom to deal with what are essential social welfare questions involving budgetary limits

and efficient public administration.’35 His lordship contended that Osman concerned the

‘merits of the substantive tort law rather than the right to a hearing.’36 He supported the

notion that the ECtHR had misinterpreted the law of negligence, as they ‘did not understand

33
Ibid
34
Lord Hoffman, ‘Human Rights and the House of Lords’ (1999) 62 MLR 159, 164
35
Ibid
36
Ibid

9
the principle by which an action is struck out without going to trial if proof of all the facts

alleged would not sustain a cause of action.’37

Some legal academicians support Lord Hoffman’s critique by citing the case of Z v

United Kingdom38 in which the ECtHR has stated that its reasoning in Osman was ‘based on

a misunderstanding of the English law of negligence which led to it misapply the distinction

between substantive and procedural rights.’39 In the case of Z the local authority failed to

separate four children from their mother even though it was clear that the children were

being subjected to an unacceptable level of abuse and neglect. The ECtHR held there had

been a breach of Article 3, but did not find a breach of Article 6(1) of the Convention, the

right to a fair trial. The majority of the Court – although not expressly stated – implied that

the decision in Osman was wrongly decided. Therefore the decision in Z v UK casts doubt

over the validity of Osman v UK.40

Van Colle41

Following the decision in Smith where liability was not imposed for police negligence

under the Hill principle the claimant’s parents brought a claim under sections 6 and 7 of the

HRA 1998, in reliance on Articles 2 and 8 of the ECHR. Lord Bingham applied the duty of care

test developed in Osman and questioned whether the police, making a reasonable and

informed judgment on the facts and in the circumstances known to him at the time, should

have appreciated that there was a ‘real and immediate risk to the life’ of Mr Van Colle.

According to Lord Bingham there was no reprehensible failure on the part of the police to

37
Ibid
38
Z v United Kingdom (2001) 34 EHRR 97
39
Ibid
40
Zoha Jamil, ‘Police Liability for Negligent Investigations: Unravelling the Blanket of Immunity’ (2013) pg 325-
326
41
Van Colle v Chief Constable of Hertfordshire [2008] UKHL 50, [2009] 1 AC 225

10
exercise their powers The lordships applied the formulation of the Osman test to consider

police liability for the breach of human rights, and most problematically did not even

consider the scope of the procedural duty arising under Article 2 of the ECHR42

Proposal(s) for reform

The judiciary have developed a separate cause of action under the Osman test.

However, it is essential for the judiciary to recognize that if the scope of the Osman test

remains undefined, and restricted on public policy reasoning, it will suffer the same fate as

the Hill principle, whereby the test will be stretched to cover absolute immunity over police

negligence. For the Osman test to be stretched to such an extent would be extremely

problematic, as it would deny individuals their basic human rights. Public policy grounds

certainly do not outweigh considerations such as ‘individual liberty’, and so the scope of the

Osman test needs to be reconsidered. The Ranstev43 principle, based on an ‘obligation not

of result but of means’, enables courts to consider public policy reasoning and the

claimant’s human rights. It follows that incorporating the Ranstev principle into domestic

jurisprudence is the most desirable solution to the issues surrounding police liability for

negligence44, as evidenced by the case of OOO45

42
Zoha Jamil, ‘Police Liability for Negligent Investigations: Unravelling the Blanket of Immunity’ (2013) 328
43
Rantsev v Cyprus and Russia (2010) 51 EHRR 1
44
Zoha Jamil, ‘Police Liability for Negligent Investigations: Unravelling the Blanket of Immunity’ (2013) 334-
335
45
OOO & Others v Commissioner of Police of the Metropolis [2011] EWHC 1246 (QB)

11
 Conclusion

If the principles developed in Ranstev were to be implemented by the English courts,

it would follow that the police would have a duty to carry out an effective investigation of

an allegation of a breach of a Convention right ‘once a credible account of an alleged

infringement had been brought to its attention.’46 This test would offer a broader scope to

Osman, and cover the duty under Articles 3 and 4. The approach taken in OOO should be

utilized by the judiciary to reformulate the principle of Hill, by clearly defining the scope of

the duty to ‘investigate and suppress crime’, and ultimately develop a test which is

compatible with the HRA 1998, and lifts blanket immunity over the police force with regards

to negligence in policing duties so that the public will never again fall victim to rigid

legislation, and maybe Ms Michael’s family will then finally receive the justice that has been

long denied to them.

46
Zoha Jamil, ‘Police Liability for Negligent Investigations: Unravelling the Blanket of Immunity’ (2013) pg 336

12
Biblography

Table of Statutes

Human Rights Act 1998

European Convention on Human Rights

Table of Cases

ECtHR Cases

Osman v United Kingdom [1998] EHRR 101

Z v United Kingdom (2001) 34 EHRR 97

Rantsev v Cyprus and Russia (2010) 51 EHRR 1

United Kingdom Cases

Michael & Ors v The Chief Constable of South Wales Police & Anor [2012] EWCA Civ 981

Caparo Industries plc v Dickman [1990] 2 AC 605

Hill v Chief Constable of West Yorkshire [1989] AC 53

Rigby v Chief Constable of Northamptonshire [1985] 1 WLR 1242

Swinney v Chief Constable of Northumbria [1997] QB 464

Osman v Ferguson [1993] 4 All ER 344

Brooks v Commissioner of Police of the Metropolis [2005] UKHL 24, [2005] 2 All ER 489

Smith v Chief Constable of Sussex Police [2008] UKHL 50, [2009] 1 AC 225

Calveley v Chief Constable of the Merseyside Police [1989] AC 1228

13
Van Colle v Chief Constable of Hertfordshire [2008] UKHL 50, [2009] 1 AC 225

OOO & Others v Commissioner of Police of the Metropolis [2011] EWHC 1246 (QB)

Books

Rogers WVH, Winfield and others, Tort (8th edn, Sweet and Maxwell 2010)

Steele J, Tort Law: Text,Cases & Materials (3rd edn, OUP 2014)

Articles

Zoha Jamil, ‘Police Liability for Negligent Investigations: Unravelling the Blanket of

Immunity’ (2013)

Mandy Shircore, ‘Police Liability for Negligent Investigations: When Will a Duty of Care

Arise?’ (2006) 11

Jane Stapleton, ‘Duty of Care: Peripheral Parties and Alternative Opportunities for

Deterrence’ (1995) 111 LQR 301, 303

Kevin Williams, ‘Emergency Services to the Rescue, or Not, Again’ (2008) Journal of Personal

Injury Law 265

Phil Palmer, ‘Can the UK Police Ever Be Liable for Negligent Investigation or a Failure to

Protect?’ (2011) 1 International Journal of Public Law and Policy 100

Claire McIvor, ‘Police Immunity and the Legacy of Hill v. Chief Constable of West Yorkshire’

(2005) 21 Professional Negligence 201

Claire McIvor, ‘Getting Defensive About Police Negligence: the Hill Principle, the Human

Rights Act 1998 and the House of Lords’ (2010) 69 CLJ 133, 142

14
Dermot PJ Walsh, ‘Police Liability for a Negligent Failure to Prevent Crime: Enhancing

Accountability by Clearing the Public Policy Fog’ (2011) King's Law Journal 27

Richard Mullender, ‘Negligence, Public Bodies, and Ruthlessness’ (2009) 72 MLR 961

Hanna Wilberg, ‘Defensive Practice or Conflict of Duties? Policy Concerns in Public Authority

Negligence Claims’ (2010) 126 LQR 420

Lord Hoffman, ‘Human Rights and the House of Lords’ (1999) 62 MLR 159, 164

Electronic Sources

Dr John Fanning, ‘Viewpoint: Supreme Court preserves police immunity from negligence

liability’ http://news.liv.ac.uk/2015/01/28/viewpoint-supreme-court-rejects-michael-

familys-bid-sue-police/ accessed 8th April 2015

15